Articles

Legislative Updates to the Environmental Planning and Assessment Act

Date:Feb 26, 2018Author:Claire Martin

Following closely in step with the Strata Legislation Reforms, almost 40 years after the inception of the EP&A Act, the NSW State government have decided to update the legislation that dictates the planning and development of our State.

The Environmental Planning and Assessment Amendment Bill 2017 was assented to by NSW Parliament last November 2017 and is set to be implemented with steps to transition expected to start as early as March. With many changes taking effect from 1 March 2018 with the majority in force by the end of 2018 and final steps introduced by 2020.

The new Act is almost half the size of the current 1979 Act. Touted as an evolution rather than a revolution by the former Planning Minister Rob Stokes, with an aim to simplify and modernise the planning system.

The changes aim to deliver a clearer, more efficient and transparent system for the assessment of major projects and State Significant Developments in NSW.

The new Act is segmented into ten (10) parts instead of the existing eight (8) retaining similar numbering for parts 3-5 as the current Act, however adopting new section numbers using the decimal numbering system.

The amendments or reforms will include:

Local Strategic Planning Statements – Councils will now be required to prepare Local Strategic Planning Statements to establish a twenty (20) year vision for land use priorities and the broader aspirations of the council for its local government area.

Community Participation Plans – planning authorities will be required to prepare a community participation plan explaining how it will consult and engage with the community in plan-making and development decisions. Decision-makers will also be obliged to give reasons for decisions when granting consent to development applications.

Standardising Development Control Plans (DCPs) – a standardised format is yet to be released.

Enforcement of Complying Development – an aim to strengthening community confidence in complying development.

New remedies for breaches of the Act – Enforceable undertakings enable breaches of the EP&A Act to be fixed, compensated or efficiently resolved. It is a faster and cheaper regulatory option than prosecuting the original breach of the consent and are a commonly used tool by NSW government agencies.

Public Authorities to consult with other authorities prior to starting work on Infrastructure – major road and rail projects, requires consent under the Act including a requirement to obtain the advice or concurrence of agencies, such as Transport for NSW or Roads and Maritime Services.

For ease of reference, on the following page is a table of comparable sections between the old act and the proposed new Act:

SECTION OF THE OLD ACT

DESCRIPTION

SECTION OF THE NEW ACT

Sec 55

Planning proposals

Sec 3.33

Sec 76

Development that does not need consent

Sec 4.1

Sec 76A

Development that needs consent

Sec 4.2

Sec 76B

Development that is prohibited

Sec 4.3

Sec 77A

Designated development

Sec 4.10

Sec 78A

Application

Sec 4.12

Sec 79B

Consultation and concurrence

Sec 4.13

Sec 79C

Evaluation

Sec 4.15

Sec 80

Determination

Sec 4.16

Sec 80A

Imposition of conditions

Sec 4.17

Sec 82A

Review of determination

Secs 8.2, 8.3, 8.4, 8.5

Sec 82B

Review where development application not accepted

Secs 8.2, 8.3, 8.4

Sec 82C

Review procedures generally

Sec 8.5

Sec 82D

Effect of review decisions

Sec 8.5

Sec 83

Date from which consent operates

Secs 4.20, 8.13

Sec 85

What is a “complying development certificate”?

Sec 4.27

Sec 89

Determination of Crown development applications

Sec 4.33

Sec 91

What is “integrated development”?

Sec 4.46

Sec 93F

Planning agreements

Sec 7.4

Sec 94

Contribution towards provision or improvement of amenities or services

Sec 7.11

Sec 94A

Fixed development consent levies

Sec 7.12

Sec 95

Lapsing of consent

Sec 4.53

Sec 96

Modification of consents—generally

Sec 4.55

Sec 97

Appeal by applicant—development applications

Secs 8.7, 8.10

Sec 106-109B

Existing uses

Secs 4.65 – 4.70

Sec 109D

Certifying authorities

Sec 6.17

Sec 109E

Principal certifying authorities

Sec 6.5

Sec 110

Definitions (Definition of an Activity – Environmental Assessment)

Sec 5.1

Sec 117

Directions by the Minister

Sec 9.1

Sec 119D

Powers of investigation officers to enter premises

Sec 9.16

Secs 121A-121ZS

Orders

Secs 9.3 – 9.37 and Sch 5

Sec 125

Offences against this Act and the regulations

Secs 9.37, 9.50

Sec 149

Planning certificates

Sec 10.7

Sec 149A

Building certificates

Sec 6.26

Some provisions will be moved to schedules and the Regulations where appropriate.

We will aim to keep you informed as to the Regulations once they have been released.

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